Failure to Stop Is An ACCA Predicate Offense

US v West, 2008 WL 5158599 (Dec. 10, 2008) (published): The Court holds that defendant's prior Utah conviction for failing to stop a vehicle at a police-officer's command is a predicate offense for sentencing pursuant to the Armed Career Criminal Act. Applying Begay v. US, 128 S.Ct. 1581 (2008), but relying on many of the escape cases and the usual "powder-keg" rationale, the Court concluded that failure to stop categorically presents a serious potential risk of physical injury to another for purposes of ACCA. The Court declined to find that the offense was not sufficiently similar to the other listed crimes and refused to limit the residual clause to property type crimes. Instead, it held the failure-to-stop offense was "sufficiently similar to the offenses enumerated in § 924(e)(2)(B)(ii)" because "it “typically involves purposeful, violent, and aggressive conduct.” It listed several reasons to interpret Begay more broadly, including 1) the relevant language talks about "purposeful, violent, and aggressive" conduct; 2) the enumerated crimes are not exclusively property; 3) the focus of ACCA is on gun violence; 4) the Supreme Court did not simply hold that DUI was not an ACCA predicate because it was not a property crime, but went on to focus on the manner in which the prior crime was committed; and 5) all the other courts are interpreting Begay this way. Failure to stop under the relevant statute qualified as purposeful, violent and aggressive conduct because it required the defendant to have operated a vehicle in willful or wanton disregard of the officer's signal to stop so as to interfere with or endanger the operation of any vehicle or person.

Defendant also contested the determination that his prior conviction for criminal enterprise was not a serious drug offense, but unfortunately he waived that appellate argument when defense counsel stated at the hearing to withdraw defendant's guilty plea that the criminal enterprise and a prior burglary conviction qualified as predicate ACCA offenses. However, Defendant won on some of the other enhancements because he had disputed them at the sentencing and the district court did not resolve the disputed factual issues. But the government gets another chance.